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November 9, 2008

Monday madness at SCOTUS: ACCA, confrontation and a Second Amendment sleeper

As detailed in this helpful SCOTUSblog post (which includes links to more materials), the Supreme Court on Monday has its biggest criminal justice argument day since ... I don't know when. Here are the particulars:

On Monday, the Court will release orders from the Justices’ private conference last Friday. We will provide a link to the orders list as soon as it is available. Following the release of orders, the Court will hear argument in:

Chambers v. United States (06-11206), on whether failure to report to prison is a “violent felony” under the Armed Career Criminals Act.

United States v. Hayes (07-608), on whether federal gun laws require a domestic relationship between an attacker and victim to qualify as a misdemeanor crime of “domestic violence.”

Melendez-Diaz v. Massachusetts (07-591), on whether the Confrontation Clause gives criminal defendants a right to cross-examine forensic analysts who prepare laboratory reports for use in their prosecution.

Because the Confrontation Clause case is the only one which directly raises a constitutional issue, I suspect it will get most of the media and academic attention. But Chambers is a case which should be of great interest to federal sentencing practitioners, and Hayes is arguably the biggest sleeper case of the term because of a set of Second Amendment issues lurking deep inside a seemingly minor statutory interpretation case.

As detailed in this post, I have had my eye on Hayes as a potentially important Second Amendment case even since cert was granted back in March. Of course, the subsequent Heller ruling finding an individual right to firearms in the home for self-protection added to the potential importance of Hayes.

Interestingly, the merits and amicus briefs submitted in Hayes mostly dodge the Second Amendment, but that does not mean that the Justices will not bring up Heller-related issues during oral argument. In other words, I am already looking forward to reading the Hayes oral argument transcript.

Comments

FWIW, the SAF did file an amicus in Hayes, not sure about the NRA though. SAF's brief appears to have been written by Alan Gura as well.

Posted by: Soronel Haetir | Nov 9, 2008 6:54:46 PM

Doug, I would like to propose an alternative way of looking at Chambers. I would suggest that ACCA enhancement is not appropriate because neither the triggering felony (Possession of Firearm by Felon) nor one of the strikes (failure to report to prison) are crimes in the Sixth Amendment sense.

First, since Possession of Firearm by a Felon has as an essential element a prior conviction, in my opinion, it is a recidivist offense. For 200 years prior convictions have been considered sentencing factors, not elements of crime, since if the prior conviction was an element the crime would violate the double jeopardy clause.

Treating a prior conviction as an element would also be irreconcilable with the Apprendi Rule's exception from a jury determination beyond a reasonable doubt for prior convictions.

However, even though I don't think Felon in Possession is a crime, I think it can be punished. Only the punishment is for contempt of court, to which the Sixth Amendment jury trial right does not attach. In other words, as a condition, either explicit or implicit, of the prior felony, the defendant was not to possess a gun. If he does, he violates an order of the court and can be punished for contempt, but the violation cannot trigger a sentencing enhancement statute based on recidivism because it is not a crime.

Second, in my view, failing to report to prison is likewise punishable for contempt since the def is not where the judge told him to be. But, again, it is not a crime. It also has as an implicit element the fact that the def was convicted of something and was supposed to report to prison.

Breaking and entering or burglary occurs when a def is somewhere he is not supposed to be. That is a crime which involves active conduct. Failure to report to prison occurs when the def is NOT somewhere he IS supposed to be. I can't think of a more "passive" crime than not being somewhere you are supposed to be.

Only substantive crimes can support the status of being an armed career criminal.

So, I think that Chambers should not have been sentenced under the ACCA since neither the trigger nor one of the strikes was a crime.

Bruce Cunningham

Posted by: | Nov 9, 2008 10:16:56 PM

I'll bet Hayes gets more media attention than Melendez-Diaz. Guns v. evidence will, I believe, trump statutory v. constitutional. The evidence question is a snoozer as far as general media are concerned.